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The Darknet: a Digital Copyright Revolution, 16 Rich Richmond Journal of Law and Technology Volume 16 | Issue 4 Article 4 2010 The aD rknet: A Digital Copyright Revolution Jessica A. Wood Follow this and additional works at: http://scholarship.richmond.edu/jolt Part of the Computer Law Commons, Intellectual Property Law Commons, and the Internet Law Commons Recommended Citation Jessica A. Wood, The Darknet: A Digital Copyright Revolution, 16 Rich. J.L. & Tech 14 (2010). Available at: http://scholarship.richmond.edu/jolt/vol16/iss4/4 This Article is brought to you for free and open access by UR Scholarship Repository. It has been accepted for inclusion in Richmond Journal of Law and Technology by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. Richmond Journal of Law & Technology Volume XVI, Issue 4 THE DARKNET: A DIGITAL COPYRIGHT REVOLUTION By Jessica A. Wood* Cite as: Jessica Wood, The Darknet: A Digital Copyright Revolution, XVI Rich. J.L. & Tech. 14 (2010), http://jolt.richmond.edu/v16i4/article14.pdf. Introduction [1] We are in the midst of a digital revolution. In this “Age of Peer Production,” armies of amateur participants demand the freedom to rip, remix, and share their own digital culture.1 Aided by the newest iteration of file sharing networks, digital media users now have the option to retreat underground, by using secure, private, and anonymous file sharing networks, to share freely and breathe new life into digital media.2 These underground networks, collectively termed “the Darknet[,] will grow in scope, resilience, and effectiveness in direct proportion to [increasing] digital restrictions the public finds untenable.”3 The Darknet has been called the public’s great equalizing force in the digital millennium, because it will serve as “a counterbalancing force and bulwark to * Southern California attorney, entrepreneur and digital native. J.D., University of California, Hastings College of the Law; B.A., University of California, Berkeley. I would like to thank Professors Margreth Barrett, Robin Feldman and Jeffrey Lefstin for their guidance. Special thanks to my family, especially my parents, and friends for their support and encouragement. 1 See Chris Anderson, People Power, WIRED, July 2006, available at http://www.wired.com/ wired/archive/14.07/people html (last visited May 20, 2010). 2 See, e.g., About GNUnet, http://www.gnunet.org (last visited May 20, 2010). 3 J.D. Lasica, DARKNET: HOLLYWOOD’S WAR AGAINST THE DIGITAL GENERATION 264 (John Wiley & Sons, Inc. 2005). 1 Richmond Journal of Law & Technology Volume XVI, Issue 4 defend digital liberties” against forces lobbying for stronger copyrights and increased technological controls. 4 [2] This article proposes a digital use exception to existing copyright law to provide adequate compensation to authors while promoting technological innovation, and the creation and dissemination of new works. Although seemingly counterintuitive, content producers, publishers, and distributors wishing to profit from their creations must relinquish their control over digital media in order to survive the Darknet era. Absent a government-granted monopoly, free market forces will provide adequate incentives to producers to create quality works, and an efficient dissemination infrastructure will evolve. [3] Part I examines the prospect that, due to the Darknet, it is virtually impossible to control digital copying. Peer production is increasing and darknets are becoming more prevalent. Liability rules, stringent copyrights, and technological protection measures stifle innovation, smother creation, and force consumers further underground into darknets. The Darknet poses a particular threat because it is impossible to track or proscribe user behavior. Further, the presence of the Darknet will render technological protection measures unenforceable, or at least impracticable, as a solution for digital copyright management. Part II introduces a digital use exception for copyright to deter development of the Darknet. The proposed copyright shelter is the solution most closely aligned with the goals of copyright, and a monopoly is no longer necessary or practical to accomplish those goals in the digital realm. Part III explores methods by which content creators, publishers, and distributors can profit under this new rule. Absent copyrights for digital works, service providers will capitalize on alternative business methods and data mining. Driven by necessity, they will commission the production of new works. I. THE RISE OF THE DARKNET CHALLENGES DIGITAL COPYRIGHT ENFORCEMENT A. Peer Production and Distributed Networking 1. Digital Content Consumers Become Producers [4] Internet users no longer passively consume media. Today’s consumers actively participate, communicate, collaborate, and create a considerable amount 4 Id. 2 Richmond Journal of Law & Technology Volume XVI, Issue 4 of amateur content (often referred to as user-generated content or UGC).5 This new breed of producer-consumers, sometimes termed “prosumers,” embodies democratic culture.6 The digital revolution promises prosumers freedom to interact with media on their own terms.7 Not only do they choose what to watch, read, hear, or create, they dictate when, where, how, and with whom they will do so.8 [5] Amateur production on the Internet is growing in volume and sophistication9 with prosumers expressing themselves through blogs, videos, photos, music (original scores, mash-ups and remixes), personalized web pages, and software applications.10 Web 2.0, the newest generation of Internet development, provides the technology that facilitates prosumer participation: wikis, podcasting, news fora, social networking sites, hosting services, and search engines.11 Peer-to-peer (P2P) networking is arguably the most controversial of these technologies. Peer-to-peer networking is a natural companion to peer production because it provides an efficient distribution vehicle for digital media and allows near-perfect access to content.12 Since users communicate directly and 5 See, e.g., Press Release, Principles for User Generated Content Services, Internet and Media Industry Leaders Unveil Principles to Foster Online Innovation While Protecting Copyrights (Oct. 18, 2007), available at http://www.ugcprinciples.com/press_release html (last visited May 20, 2010). 6 ALVIN TOFFLER, THE THIRD WAVE 283 (William Morrow & Company 1980) (coining the term “prosumers”). 7 See id. 8 See LAWRENCE LESSIG, REMIX: MAKING ART AND COMMERCE THRIVE IN THE HYBRID ECONOMY 44 (Penguin Press 2008). 9 Johan A. Pouwelse et al., Pirates and Samaritans: a Decade of Measurements on Peer Production and Their Implications for Net Neutrality and Copyright, 32 TELECOMMS. POL’Y 701, 711 (2008) (detailing Dutch scientists’ findings from research that tracked P2P networking for ten years). 10 See, e.g., YouTube Home Page, http://www.youtube.com (last visited May 20, 2010); WordPress Home Page, http://wordpress.com (last visited May 20, 2010). 11 See Claudia K. Grinnell, From Consumer to Prosumer to Produser: Who Keeps Shifting My Paradigm? (We Do!), 21 PUB. CULTURE 577, 595 (2009). 12 Pouwelse et al., supra note 9, at 702. 3 Richmond Journal of Law & Technology Volume XVI, Issue 4 contribute both content and hardware resources, P2P replaces the traditional, central-server Internet model as the primary vehicle for content distribution. 13 2. Distributed Networking Technology [6] Peer-to-peer distribution technology differs from traditional Internet functioning by permitting computers to share information directly with other computers without the need for a central storage server. 14 Previously, computers connected to the Internet communicated with each other through servers using standard Protocol guidelines. 15 Internet Protocol (IP) addresses that identify each computer on the Internet can be converted to recognizable names (e.g., www.spacebook.com). 16 Typically, media files and other content are stored on central servers (hosts) in a traditional client/server relationship. 17 In that system, client (user) computers can only access information on servers through websites using the Internet, and clients cannot exchange files directly with other client computers. 18 In contrast, a P2P network permits a computer connected to the Internet to identify itself as both a client and a server, thereby enabling the computer to communicate directly with any other computer on the Internet to exchange files. 19 All types of P2P network models fall within the classification of distributed networks because no central server stores the files. 20 [7] In a distributed network, every computer acts as a host, and each user can introduce content to the network by storing files on their computer and making 13 Id. 14 Stephanos Androutsellis-Theotokis & Diomidis Spinellis, A Survey of Peer-to-Peer Content Distribution Technologies , 36 ACM COMPUTING SURVEYS 335, 335-36 (2004). 15 Grinnell, supra note 11, at 578. 16 BILL AVERY , SAN LUIS OBISPO PC USERS GROUP : GENERAL MEETING 2 (2002), http://www.slobytes.org/newsletter/nl1202.pdf. 17 David Barkai, An Introduction to Peer-to-Peer Computing , INTEL DEVELOPER MAG ., Feb. 2000, at 1, 3. 18 Id. 19 Id. 20 Androutsellis-Theotokis, supra note 14, at 337. 4 Richmond Journal of Law & Technology Volume XVI, Issue 4 those files available to others on the network. 21 The content available at any given moment depends on the contemporaneous files on the network users’ computers. 22 A software application is required to establish
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